Case No. VSO-0139, 26 DOE ¶ 82,790 (H.O. Lipton August 14, 1997)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX's.

August 14, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 4, 1997

Case Number: VSO-0139

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual's suspended access authorization should be restored. As discussed below, I find that the individual in the present case has not met his burden to bring forward sufficient evidence to show that his security clearance should be restored.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. §710.21, the Notification

Letter included a detailed statement of the derogatory information. The first area of DOE concern involves information that indicated that the individual has been or is a user of a illegal drugs. 10 C.F.R. §710.8(k) (hereinafter Criterion K). The second area of concern identified in the Notification Letter involves information that the individual has engaged in conduct tending to show that he is not honest, reliable or trustworthy. 10 C.F.R. § 710.8(l)(Criterion L).

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual represented himself. He testified on his own behalf, and presented the testimony of his pastor, his wife, four witnesses who were co-workers/friends, and that of a certified alcohol counselor (hereinafter referred to as the individual's psychologist or psychologist). The DOE Counsel presented the testimony of a security specialist, a DOE medical review officer, and that of a DOE consultant psychiatrist (DOE psychiatrist).

II. Statement of Derogatory Information

As stated above, the area of concern identified in the Notification Letter involves the individual's illegal use of drugs. As described in the letter, the individual tested positive for marijuana and codeine in a random drug test. In a personnel security interview (PSI) the individual admitted to a one-time use of marijuana and to ingestion of his wife's prescribed codeine cough syrup. These two actions gave rise to the Criterion K concern. The DOE consultant psychiatrist evaluated the individual, and found that by smoking marijuana, and by using a controlled substance prescribed for another person, the individual exhibited a deficit in judgment, which called his reliability into question. This evaluation gave rise to the Criterion L security concern.

III. Analysis

A. Standard of Review

The Hearing Officer's role in this proceeding is to evaluate the information presented by the DOE office and the individual, and to render an opinion based on that evidence. The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R.§ 710.7(a).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard, which is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518,531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

B. Criterion K

Based on the individual's admitted use of an illegal substance (marijuana) and his illegal use of a controlled substance (codeine) I find that the DOE office properly invoked Criterion K in suspending the individual's access authorization.

1. Mitigating Factors

In rendering my judgment in this case, I must consider whether there are factors present to mitigate the DOE's security concerns. 10 C.F.R. § 710.7(c); § 710.27(a). Among the factors I am to consider in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. § 710.7(c).

2. Marijuana Use

In order to mitigate the security concern associated with use of illegal drugs, the individual maintains that his use of marijuana was an isolated event. He testified that he was at a party and went off to a secluded spot with a friend to play chess. During the game, his friend offered him the marijuana. The individual stated that he refused several times, but that after he had drunk several glasses of wine, and was feeling "high," he finally succumbed. He stated that he has never before or since used marijuana. Transcript of Hearing (hereinafter Tr.) at 233, 241.

To support the contention that his marijuana was limited to a one- time use, the individual brought forward six witnesses who, based on their long-time acquaintance with him, testified that they did not believe that he was a regular marijuana user. His pastor testified that he has known this individual for about four years. Tr. at 23. He stated that the individual is very involved in church activities and that he sees this individual on virtually a daily basis. Tr. at 34-35. He was convinced that the marijuana incident was an isolated event. Tr. at 29.

The individual's wife testified that she has known the individual for nearly 30 years. She stated that in all that time she has never known her husband to be involved in any illegal drug use. Tr. at 57, 61. She viewed the marijuana use as a spontaneous, isolated event that occurred in an unfortunate moment of weakness. Tr. at 67.

The individual also brought forward four co-workers/friends who testified quite convincingly on his behalf. These witnesses have all known the individual for at least 12 years. Tr. at 80, 90, 108, 168. Each of these witnesses testified that he had contact with the individual in both workplace and social settings, and had never known the individual to use marijuana. Tr. at 83, 97, 114, 176. Moreover, it is clear that these witnesses had more than a passing acquaintance with this individual. They and their families had significant social contacts with the individual and his immediate family for a number of years. Tr. at 82, 97, 114, 169, 176. Based on their broad knowledge of the individual's lifestyle, they expressed surprise and even shock about the individual's positive drug test. Tr. at 83, 98, 113, 176.

The individual also presented the testimony of a licensed clinical psychologist who is employed in the employee assistance program at the individual's workplace. The psychologist testified that when an employee, such as the individual, tests positive for illegal drugs, he is offered the option of entering the Employee Assistance Recovery Program. In entering this program, an employee agrees to a period of complete sobriety, in which all mood altering drugs, including alcohol, are prohibited for a period of two years. Tr. at 206-07. She indicated that other components of this individual's rehabilitation plan included attendance at 90 Alcoholic's Anonymous (AA) or Narcotics Anonymous meetings in 90 days, a minimum of one meeting with her per month and random toxicology screens two times per month for the first year. Tr. at 209

The psychologist testified that as of the hearing date, the individual had been participating in this program for about five months. Tr. at 214-15.(2) She indicated that the individual had thus far complied with all of the requirements of the program. She also testified that all of his random drug tests to date had been negative. Id. (3) As of the date of the hearing, she had seen the individual for nine, one-hour long, individual therapy sessions. Tr. at 218. She stated that at these meetings, the individual's attitude had been "very, very positive," and that the individual was taking the program very seriously. Tr. at 208, 219. She did not believe that the individual had a chronic substance abuse problem. Tr. at 214. She believed that his risk of relapse was very low. Tr. at 222.(4)

This evidence is strongly in the individual's favor. The individual's wife, his pastor, and the four friend/coworker witnesses were all quite convincing in their testimony that they had never known the individual to use marijuana. Their familiarity with the individual's overall life-style and their long-term contacts with him convinced me that this individual is not a user of marijuana in his current home or work setting. Moreover, the psychologist testified that based on her observations, the individual was not a chronic substance abuser. In view of the above, I find that the individual is not a chronic marijuana user.

However, the individual asserts a one-time use of marijuana that did not take place in either his current home or work environment, with which the individual's witnesses were quite familiar. It occurred in the individual's home-town, the city where he grew up, and where his mother and sisters still live. Thus, the testimony of these witnesses, while convincing as to the individual's habits in his home and work environment, sheds no light on his behavior with respect to his home-town activities. The pastor and co- worker/friend witnesses were not particularly familiar with this aspect of the individual's life. They were not well acquainted with the individual's family and friends from his home-town. Tr. at 92, 101. The psychologist relied in large measure on the individual's own assertions as to the one-time marijuana use. Tr. at 210. The wife, although familiar with the individual's home- town background, could provide only very general statements about his current activities there. Tr. at 60-72. These witnesses had no direct knowledge of the circumstances under which the individual used the marijuana. In my view, the testimony of these witnesses alone did not adequately support the individual's claim of a one- time marijuana use. I must therefore rely on other evidence for support regarding whether the marijuana incident was isolated.

The individual described the incident as follows. He indicated that once a month he returns to his home town, which is located about an hour away from the area where he currently lives, in order to get his hair cut. The individual states that upon leaving the barber shop on a day about ten months before the hearing, he was greeted by a friend whom he had not seen in a number of years. As stated above, this friend allegedly invited the individual to a party at his house and at the party offered the individual the marijuana. The individual states that at first he refused the offer, but eventually relented after he became high on wine. Tr. at 230-33. He asserts that it was an isolated use. Tr. at 249.

These contentions of a one-time use, if true, tend to mitigate the seriousness of the occurrence. They suggest that the use of marijuana was isolated, and an unpremeditated event. These are the types of factors that I am to consider under 10 C.F.R. § 710. 7(c), set out above. They relate directly to the nature, extent and seriousness of the conduct, the circumstances surrounding the conduct, the frequency of the conduct and the motivation for the conduct. In this regard, in these administrative review proceedings, a security concern created by involvement with illegal drugs within the previous 12 months may be mitigated if it was an isolated incident or an infrequent enough event as to warrant acceptance of the individual's assertion that he will not be involved with drugs while holding a DOE access authorization. Personnel Security Hearing (VSO-0116), 26 DOE ¶ 82,765 (1997).

In order to find the existence of mitigating circumstances as alleged by an individual involved in a proceeding under Part 710, I must receive appropriate evidence to show that the circumstances described by the individual are true. Personnel Security Hearing (VSO-0094), 26 DOE ¶ 82,753 (1996). In this case, however, the individual has brought forth no evidence to support his version of the events surrounding his drug use.

From the outset in this proceeding, I impressed upon the individual the importance of bringing forth witnesses who would be able to lend support to his allegations. See Letters of April 30, May 14 and May 23, 1997. In order to attempt to meet his burden of proof concerning this aspect of his case, the individual indicated early in the proceeding that he would call as witnesses the person who offered him the marijuana, and another guest at the party.

Prior to the hearing, the individual stated that he was having difficulty contacting the individual who offered him the marijuana, but that he was searching diligently for him. Then, once a hearing date was set, the individual indicated that he had finally located the person who offered him the marijuana. The individual stated that this person would be out of town on the scheduled date of the hearing. Accordingly, the individual requested that the hearing be delayed in order to accommodate this witness. The first possible date on which this witness would be able to appear was beyond the 90 day period in which I am required to schedule the hearing. 10 C.F.R. §710.25(g). Accordingly, the individual requested that the Director of the Office of Hearings and Appeals extend the hearing date past the 90 calendar day time frame. Id. In view of the importance of taking the testimony of this witness, this request was granted.

On the day of the hearing, the individual told me and the DOE Counsel that the previous evening he had received a telephone call from the person who offered him the marijuana. This person stated that he had decided not to appear. The individual also told us that the other party guest would also not appear for the hearing. Accordingly, the hearing was held without these two important corroborating witnesses.

Nevertheless, I continued to consider the importance to the individual of the testimony of these two persons. Therefore, after the hearing was over, I wrote him a letter offering him the opportunity to supplement the record. I indicated to him that I would reopen the hearing to take the testimony of the person who offered him the marijuana, and any other party guests that he wished to offer as witnesses. I stated that I would issue subpoenas to these witnesses to insure their appearance.

The individual agreed to this approach. He said that he would again contact the person who gave him the marijuana, as well as the other party guest that he had originally expected to appear at the hearing, and inform them that they would be directed to appear under subpoena. He said he did not know the full names of any other guests at the party, and thus could not contact them for the purpose of requesting their testimony.

Expecting to reconvene the hearing, I allowed the record to remain open. However, once this course of action had been set, the individual maintained that in spite of numerous efforts, he could not reach the person who gave him the marijuana. The individual stated that this person had moved from his previous address, where the party was held, and that he did not know this person's new address. He indicated that this person did not respond to messages left on his telephone answering machine. Thus, after several weeks of delay, it appeared that the individual would not be able to locate the person who gave him the marijuana. (5)

I then offered to hold the second hearing only for the purpose of taking the testimony of the one other party guest whose name and address the individual did know. This guest was the other person who was scheduled to testify at the hearing, but who did not appear. The individual declined this offer, stating that he could not reach this person by telephone, and no longer wished to attempt to secure the testimony of this party guest. (6) Although I impressed upon this individual the importance of having some testimony to support his version of how he came to ingest marijuana, the individual declined to make any further efforts in that regard. He stated that he would rely on the information that he had already submitted. See Letter of July 28, 1997.

As is clear from the above, significant accommodations have been made in this proceeding to ensure that this individual had a full opportunity to provide evidence supporting his eligibility for access authorization. He was made aware from a very early stage of the importance of corroborating his version of the events surrounding his use of marijuana. An extension of time was granted by the Director of the Office of Hearings and Appeals to allow the appearance of a key witness. When that witness and another important witness did not appear, I offered to reconvene the hearing and issue subpoenas to insure their appearance. The record was held open for several weeks.

I note in this regard that although the individual now states that he is unable to locate the key witnesses, before the hearing he claimed that he was in contact with them and was certain that they would appear. This rather sudden, and not fully explained disappearance or unavailability of key witnesses at the crucial moments in this case leaves a significant deficiency in the record. Furthermore, in my view, it seriously undermines the individual's overall credibility as to his version of the circumstances surrounding his marijuana use. I am not persuaded that he has been totally candid in this proceeding. Based on the foregoing, I find that the individual has failed to substantiate his claim that his use of marijuana was an isolated occurrence.

While not necessary to the above conclusion, there is some additional evidence in this case suggesting that the marijuana use may not have been a one-time event. The Acting Clinical Manager in the health services department of the DOE Office testified concerning the positive marijuana test. This witness is a Medical Review Officer (MRO) who reviews drug tests to make sure the process was appropriate and interviews employees who test positive. Tr. at 135.

The MRO stated that marijuana is normally cleared from the system within two to three days. He further stated that "for the occasional user or rare user, you would expect [the marijuana] to be absent within 24 to 48 hours." Tr. at 143-44. In the present case, the individual states that he used the marijuana four days prior to the drug test. The MRO indicated that it would be highly improbable (although not impossible) that an occasional user of marijuana would test positive 96 hours after the usage. Tr. at 164. (7)

In this case, as I discussed above, I am not persuaded that the individual's use was isolated or infrequent, since the individual did not submit sufficient corroboration on this point. There is no evidence in the record supporting his version of how he happened to use marijuana, and I doubt his credibility on this issue.

In order to find that Criterion K security concerns have been mitigated, I must therefore have more than the individual's own assertions that he will have no further involvement with illegal drugs while holding a security clearance. See Personnel Security Hearing (VSO-0116), 26 DOE ¶ 82,765 at 85,605. Accordingly, I will consider whether there is adequate evidence of satisfactory completion of a drug treatment program, such that the Criterion K security concerns are mitigated through rehabilitation.

I have reviewed the record evidence regarding the individual's drug counseling program to assess the status of his rehabilitation efforts. As I discussed above, the program that the DOE psychologist recommended for this individual included monthly therapy sessions, 90 AA meetings in 90 days, and semi-monthly random drug tests for a one year. Tr. at 217. (8) Under this program, the one-on-one counseling sessions and the abstinence from all mood altering substances are to continue for a two year period. Tr. at 219. As of the date of the hearing, only 7 months of the year-long drug testing program had been completed. The individual had attended only nine therapy sessions. Further, only one-fourth of the two year sobriety commitment had been completed. Tr. at 220. (9) Given the fact that the individual has not completed his rehabilitation program, and further my belief that the individual has not been completely candid about the marijuana incident, I cannot find that the security concerns surrounding his use of marijuana have been mitigated.

3. Codeine Use

As stated above, the Notification Letter in this case also indicates that the individual tested positive for codeine. The individual stated that his positive drug test came as a result of using his wife's prescription codeine cough medicine. While codeine is not an illegal drug, per se, it is a controlled substance for which a user must have a prescription. Use of a controlled substance prescribed for another person is illegal. Since the individual indicated that this use was not prescribed for him, it raises a separate security concern under Criterion K. Thus, the individual must bring forward evidence to mitigate the concern.

The individual indicated that he had been suffering with a severe cough for several weeks. The night before his random drug test, he used some of his wife's cough syrup with codeine to control his coughing, and ease his suffering. Transcript of September 10, 1996 Personnel Security Interview at 6 (hereinafter PSI Tr.).

The individual has presented evidence to corroborate these assertions. He provided copies of prescriptions for cough medicine with codeine that were written for his wife and his daughter within the year preceding the positive drug test.(10) At the hearing, the individual's wife testified that the individual was sick at night and needed some relief so he could rest. She stated that the symptoms were the same as her own and those of her daughter when they used the prescription codeine. She stated that there were no other medications in the house at that time that could have helped him. Tr. at 54-55. I am convinced by this documentary evidence and testimony that the individual's use of the cough syrup prescribed for his wife was a rare event. (11)

The MRO testified regarding the positive codeine test and the level of security risk such a use poses. This witness has a function besides that of medical review officer. He is also a physician in the Personnel Security Assurance Program (PSAP).(12) In this context he must make a judgment as to whether a particular behavior raises a security concern. Tr. at 159. At the hearing he referred to the situation in which an individual has a positive drug test through use of a prescription drug of a spouse as a "spousal positive." He indicated that it was not an infrequent occurrence. Tr. at 149-50. He stated that in cases of spousal positives, he would record the positive drug test. He did not think however, that the spousal positive "is going to be a concern." Tr. at 160. He said that in his experience, individuals with a spousal positive are generally counseled not to use prescription drugs written for others, and perhaps given some drug monitoring. Tr. at 162. I conclude from this testimony that the MRO did not believe the circumstances under which the individual used codeine presented a significant security risk.

The DOE Security Specialist also testified regarding the individual's use of codeine. She stated that use of the substance could degrade judgment, and that the particular use in this case violated the law. Tr. at 183. She enunciated a further concern about the use of a controlled substance. She stated that if an employee in the PSAP uses prescription drugs, he is under an obligation to inform the MRO, so that a determination can be made as to the impact on the employee's judgment of the use of the controlled substance, and whether he needs to be assigned to non- PSAP duties during that time. Tr. at 185. Thus, according to the Security Specialist, the non-prescription use of the controlled substance clearly raises security concerns beyond those associated with the violation of the law.

The Security Specialist further indicated that, in her view, the spousal positive codeine test, standing alone and without the concurrent positive results for marijuana, would not have resulted in the administrative review proceeding concerning the individual's clearance. She believed that the explanation of a spousal positive would have mitigated the security concern raised by use of codeine. She stated that the individual would in all likelihood have been counseled not to repeat this behavior in the future. Tr. at 186- 87.

The individual's psychologist indicated that she and the individual have discussed and are continuing to discuss the codeine issue. Tr. at 225. She believes that he has learned a very valuable lesson. Id.

Based on the above facts, I am convinced that the individual has been educated and sensitized as to the importance of never using controlled substances prescribed for another person. I believe that he is now aware of the negative legal, professional, social and health implications of using drugs prescribed for family members. I am persuaded that he has mitigated the security risks associated with his positive test for codeine.

C. Criterion L

The individual's admitted use of marijuana and codeine prescribed for his wife give rise to a DOE security concern with respect to his trustworthiness, honesty and reliability under Criterion L. As I discussed above, I believe that the individual has mitigated the concerns regarding his use of codeine prescribed for his wife. In view of the significant education he has received regarding use of prescription substances, I find that his trustworthiness and reliability are restored regarding this matter.

However, as I stated above, the individual has not mitigated the security concerns regarding his marijuana use. I am not convinced

that the use is a one-time, isolated event, as he has contended. I did not find his statements to me regarding the circumstances in which he used marijuana to be credible. I have continuing concerns about this individual's candor with respect to his use of marijuana. I therefore cannot be sure that he is currently fully trustworthy, honest and reliable. Accordingly, I find that this individual presents a security concern with respect to Criterion L.

IV. CONCLUSION

In the above analysis I have found that there is significant derogatory information in the possession of the DOE which raises serious concerns under Criteria K and L as to the eligibility of this individual for access authorization. I have also found that the individual has failed to bring forth sufficient evidence to mitigate these security concerns. I am therefore unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W. Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for

review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: August 14, 1997

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. This authorization will also be referred to in this Opinion as a security clearance.

(2)Although the individual began immediate one-on-one counseling with the psychologist, he did not begin all other aspects of the rehabilitation program until several months later, due to scheduling problems. Tr. at 216-17.

(3)The individual asserted abstinence all from mood altering substances for a 10 month period. He also submitted results of random drug and alcohol tests for a five month period, all of which were negative.

(4) The DOE psychiatrist testified that the program that the individual was in was appropriate and was within accepted standards. Tr. at 226.

(5)The DOE Counsel also made several unsuccessful attempts to reach this person by telephone.

(6)In a letter of July 15, 1997, I suggested to the individual that he attempt to secure testimony of family members and friends who might be able to shed light on his home-town activities. I suggested that he bring forward the barber that he visits. The individual did not avail himself of these opportunities.

(7)The DOE psychiatrist stated that a single use of marijuana can result in a positive drug test one or two weeks later. Tr. at 196. However, this witness admitted that he is not a toxicologist. Id. His level of expertise on this point is thus not as great as that of the MRO. Further, the DOE psychiatrist was not even firm in his view on this issue. He later offered a somewhat contradictory opinion that marijuana "can show up one or two weeks in chronic users." Tr. at 197.

(8)This program was not one designed for chronic drug users, which would be more intense. Tr. at 209.

(9)The psychologist testified that the individual had completed the AA portion of his program. Tr. at 215. She dates the individual's sobriety period from the time that he signed a commitment with her to participate in the rehabilitation program.

(10)The individual presented nearly identical prescriptions for codeine cough medicine written for his wife and his daughter.

(11)The individual also stated at the September 10, 1995 PSI that he may have taken some of his wife's cough syrup once or twice before during their 25 year marriage. PSI Tr. at 8-9.

(12)An employee in PSAP agrees to being subject to random drug tests, among other requirements. Tr. at 134.